Filed 2/18/15 Radiator USA v. WCAB CA2/8 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

RADIATOR USA et al., 

 Petitioners, 

 v. 

WORKERS’ COMPENSATION 

APPEALS BOARD etc., et al., 

 Respondents. 

 B255839 

 (WCAB No. ADJ7750590) 

 PROCEEDING to review a decision of the Workers’ Compensation Appeals 

Board. Anne J. Horelly, Workers’ Compensation Administrative Law Judge. Annulled 

and remanded with directions. 

Floyd, Skeren & Kelly, David L. Zimmerman and Phillip Scuderi for Petitioners. 

 Solov and Teitell, James A. Teitell and John Reff for Respondent Am Kang. 

__________________________ 
2

 Petitioners seek a writ of review after the Workers’ Compensation Appeals Board 

denied reconsideration of the decision of the workers’ compensation judge (WCJ) finding 

industrial causation of a psychiatric injury and sleep disorder.1 

 The issue presented is whether there is competent medical evidence to support 

industrial causation of the psychiatric injury and sleep disorder. We hold that the medical 

evidence on the cause of the psychiatric injury and sleep disorder is not substantial 

evidence because it is based on an inadequate medical history. We remand the case for 

further development of the record on the industrial nature of the cause of the psychiatric 

injury and sleep disorder. 

FACTS 

A. The Employee’s Injury 

 The employee, Am Kang (Kang), sustained an admitted injury to his back on 

December 24, 2010 while working as a driver for Radiator USA. Kang additionally 

claimed to have sustained injury to his psyche in the form of a sleep disorder. 

B. The Medical Reports 

 On February 28, 2012, the agreed medical evaluator (AME) in orthopedics, 

David B. Pechman, M.D., noted compression fractures in Kang’s vertebrae that appeared 

old. Dr. Pechman thought that most of Kang’s pain related to the compression fractures. 

Dr. Pechman opined Kang was permanent and stationary from an orthopedic standpoint 

on the date of his examination. However, he requested an EMG and nerve conduction 

study to determine how many of the fractures were radicular and a bone scan to evaluate 

the cause of Kang’s collapsing bones. Dr. Pechman apportioned 50 percent of the 

orthopedic injury to nonindustrial preexisting metabolic bone disease. 

 

1 The Petitioners are Radiator USA, the employer; Start Insurance Company, the 

insurer; and Illinois Midwest Insurance Company, the adjuster. For ease of reference, we 

will refer to petitioners as Radiator USA. 
3

 On July 2, 2012, Rodney Bluestone, MB, FRCP, the qualified medical evaluator 

of rheumatology, confirmed Kang had metabolic bone disease (osteopenia and 

osteoporosis) but could not determine a cause. Although Dr. Bluestone requested 

additional testing to determine the cause of the metabolic bone disease, there was no 

supplemental report that addressed causation. Dr. Bluestone had a “strong impression 

that this patient [was] suffering from significant depression, which probably lower[ed] his 

pain threshold and which [might] impact the quality of his sleep, resulting in greater 

fatigue and a sleep-and-arousal disorder.” 

 In this report of August 25, 2012, Dr. Pechman acknowledged Dr. Bluestone’s 

report but did not change his opinion on apportionment. 

 Ana L. Nogales, Ph.D., ABPS, FACFE evaluated Kang as a secondary treating 

physician in psychology. As reflected in her September 14, 2012 report, Dr. Nogales 

obtained a history of the injury, history of the treatment, and physical and emotional 

complaints exclusively from Kang. Dr. Nogales explicitly noted that she did not receive 

medical or employment records for review.2 

 On the issue of causation, Dr. Nogales found that, as a “consequence of his 

industrial accident, Mr. Kang developed anxiety that increased with the passage of time 

and deteriorated at the end of 2011 when he saw that his condition is not improving.” Dr. 

Nogales opined that the “percentage of total causation of Mr. Kang’s current mental 

disorder is estimated at a higher level than the legal threshold of industrial causation of 

50 [percent].” She specifically noted a nonindustrial causal factor of a dog bite in 2005 

requiring stitches. 

 Dr. Nogales concluded Kang’s condition was not stabilized to the point where 

residual permanent disability was evident. She found Kang totally and temporarily 

disabled and unable to return to regular or modified work. Dr. Nogales made no mention 

of Dr. Pechman’s orthopedic diagnosis or his apportionment to the preexisting bone 

disease. 

 

2 Kang does not contend otherwise. 
4

 Significantly, Dr. Nogales deferred apportionment to the time of the permanent 

and stationery report “after I have the opportunity to review previous medical, psychiatric 

and employment records.” 

C. Facts Adduced at the Hearing 

 The matter was heard on September 26, 2013. Four of Dr. Pechman’s reports 

were admitted into evidence. Five of Dr. Nogales’s progress reports and the 

September 14, 2012 report were submitted by Kang and admitted with no apparent 

objection from Radiator USA. Radiator USA submitted Dr. Bluestone’s July 2, 2012 

report. 

 Kang was the only witness who testified at the hearing. Kang stated he saw Dr. 

Nogales because he was nervous, had feelings of dread, and could not sleep. He told Dr. 

Nogales he could not sleep, he was nervous, and sometimes he wanted to die. Dr. 

Nogales told him her diagnosis was “deep depression.” 

 Kang told Dr. Nogales about a dog bite requiring stitches in 2005 but he did not 

recall telling Dr. Nogales that he was bothered by images of his accident or that he was 

reliving the traffic accident. Kang divorced in 1996, which had an emotional impact. 

Kang felt it would be harder to raise his children as he was the one taking care of them.3 

He was unable to see two of his grandchildren because of his finances but continued to 

hope that he would. Kang did not recall if he discussed grandchildren with Dr. Nogales. 

 At the time of the hearing, Kang continued to have trouble sleeping. His difficulty 

sleeping began after his injury because he claimed to have received no treatment for four 

months after the accident. 

 

3 At the time of his deposition on July 25, 2011, his children were aged 45, 40 and 

38. Accordingly, in 1996, his children were approximately 30, 25 and 23, all adults. 
5

D. The Rulings of the WCJ and the Appeals Board 

 On December 26, 2013, the WCJ issued findings of fact concluding Kang 

sustained industrial injury to his back, to his psyche, and in the form of a sleep disorder. 

The WCJ found Kang reached maximum medical improvement for his physical injury on 

February 28, 2012, but was still temporarily disabled from the psychiatric injury. The 

WCJ relied on the doctors’ reports as well as the “credible testimony” of Kang. 

 Radiator USA petitioned for reconsideration. Reconsideration was sought based 

“upon a lack of medical evidence to support this finding.” Radiator USA claimed Dr. 

Bluestone was a rheumatologist, not a psychologist/psychiatrist or sleep specialist, and 

his impression of Kang’s depression and sleep problems was not substantial evidence. 

Similarly, Dr. Pechman was an AME in orthopedics, not a psychologist/psychiatrist or 

sleep specialist. 

 As to the psychologist’s opinions, Radiator USA criticized Dr. Nogales’s failure to 

acknowledge Kang’s nonindustrial metabolic bone disease as a cause of the pain and 

sleep disorder, the inconsistency between Dr. Nogales’s report and Kang’s testimony at 

trial regarding reliving the accident, and the omission of other causal factors including the 

divorce and separation from grandchildren. Radiator USA argued that without a review 

of past and present medical records and a true history of applicant’s past emotional 

events, there was no support for a finding of industrial psychiatric injury. 

 On March 17, 2014, the appeals board issued an opinion and order denying 

reconsideration. The appeals board found the doctors “based their opinions on extensive 

discussions with [Kang] regarding how he sustained his injury and his condition 

thereafter.” The appeals board found that, based on these discussions, Dr. Nogales 

concluded the industrial cause of Kang’s psychiatric injury was higher than the legal 

threshold. The appeals board found the doctors explained the reasoning behind their 

conclusions. On the other hand, Radiator USA offered no evidence, documentary or 

testimonial, rebutting or impeaching the medical reports. The appeals board specifically 

determined that the medical reports constituted substantial evidence. In addition, the 
6

appeals board gave great weight to the WCJ’s determination that Kang was credible, 

especially in light of the lack of contradictory witness or medical evidence. 

 We granted Radiator USA’s petition for writ of review. 

DISCUSSION 

A. There is a Reviewable Threshold Issue 

 As a preliminary matter, a petition for writ of review may be sought only from a 

final order, decision, or award of the appeals board. (Lab. Code, §§ 5900, 5901;4

Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074; 2 Hanna, 

Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2d ed.) § 34.10[2], 

p. 34-9.) However, certain threshold issues that are dispositive of the case are reviewable 

before there is a final decision in the case. Whether the injury arose out of and in the 

course of employment, as is the issue in this case, is a recognized threshold issue. 

(Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 533-

534, fn. 2 and accompanying text.) Thus, the decision in this case is reviewable under the 

aegis of a writ of review. 

B. General Principles 

 A psychiatric injury is compensable if actual events of employment were 

predominant as to all causes combined of the psychiatric injury. (§ 3208.3, subd. (b)(1).) 

The phrase “ ‘predominant as to all causes’ ” has been found to be “greater than a 50 

percent share of the entire set of causal factors.” (Department of Corrections v. Workers’ 

Comp. Appeals Bd. (1999) 76 Cal.App.4th 810, 816.) Causation of a psychiatric injury 

requires competent medical evidence. (San Francisco Unified School Dist. v. Workers’ 

Comp. Appeals Bd. (2010) 190 Cal.App.4th 1, 9 citing to Rolda v. Pitney Bowes Inc.

(2001) 66 Cal.Comp.Cases 241, 245.) 

 

4 Further statutory references are to the Labor Code. 
7

 When determining whether the appeals board’s conclusion was supported by 

substantial evidence, the evidence should be considered in light of the entire record. 

(§ 5952, subd. (d); Le Vesque v. Workers’ Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637.) 

“Medical reports and opinions are not substantial evidence if they are known to be 

erroneous, or if they are based on facts no longer germane, on inadequate medical 

histories and examinations, or on incorrect legal theories.” (Hegglin v. Workers’ Comp. 

Appeals Bd. (1971) 4 Cal.3d 162, 169, italics added.) 

C. The Flaw in Dr. Nogales’ Conclusion 

 The sole medical evidence of industrial causation came from psychologist Dr. 

Nogales. It is true that the appeals board addressed the examination conducted by Dr. 

Bluestone, the rheumatologist, noting Kang to be severely fatigued and suffering from a 

significant depression. However, apart from the fact that Dr. Bluestone is not qualified to 

render a psychiatric evaluation as to depression, there is nothing in Dr. Bluestone’s 

reporting that speaks to the cause of Kang’s condition. 

 Dr. Nogales found that Kang’s psychiatric condition was the result of his 

orthopedic injuries. Dr. Nogales, however, was completely unaware of the fact that Dr. 

Pechman had apportioned 50 percent of the orthopedic injury to nonindustrial preexisting 

metabolic bone disease. Does this mean that 50 percent of the psychiatric injury is 

attributable to nonindustrial causes? While we acknowledge that these determinations 

cannot be made with mathematical precision, it is at least a major issue what portion of 

the psychiatric injury is attributable to nonindustrial causes. Although 50 percent is a 

reasonable surmise, on this silent record it is equally plausible to suppose that, given that 

psychiatric evaluations are unavoidably case-specific, 60 percent of the psychiatric injury 

- or 40 percent thereof - is attributable to nonindustrial causes. In short, what is needed 

here is an expert opinion that is based on a complete medical history, which necessarily 

includes Dr. Pechman’s finding that 50 percent of the orthopedic injury is attributable to 

nonindustrial causes. 
8

 As far as the firmness of Dr. Pechman’s 50 percent apportionment to nonindustrial 

causes is concerned, Dr. Pechman maintained this opinion after he reviewed Dr. 

Bluestone’s report. 

 It does Dr. Nogales credit that she expressly deferred the issue of apportionment to 

a time when she would have seen the medical and employment records. Notwithstanding 

her refusal to comment on apportionment, and irrespective of Dr. Pechman’s allocating 

50 percent of the orthopedic injury to nonindustrial causes, the appeals board accepted 

Dr. Nogales’s conclusion that the “percentage of total causation of Mr. Kang’s current 

mental disorder is estimated at a higher level than the legal threshold of industrial 

causation of 50 [percent].” This opinion, however, could hardly have been anything 

more than tentative and entirely conditional on the review of records that Dr. Nogales 

very candidly acknowledged she had not seen. Given its admitted limitations, Dr. 

Nogales’s report is not competent medical evidence on the cause of Kang’s psychiatric 

injury and sleep disorder. 

D. The Appeals Board’s Duty to Develop the Record 

 Given the lack of competent medical evidence on causation, the decision of the 

appeals board cannot stand. The question now becomes whether it is appropriate to 

return the case for further development of the record on the issue of the cause of the 

psychiatric injury and sleep disorder. 

 Section 5906 specifically empowers the appeals board to take additional evidence 

upon the filing or granting of a petition for reconsideration.5 Independently of a petition 

 

5 “Upon the filing of a petition for reconsideration, or having granted 

reconsideration upon its own motion, the appeals board may, with or without further 

proceedings and with or without notice affirm, rescind, alter, or amend the order, 

decision, or award made and filed by the appeals board or the workers’ compensation 

judge on the basis of the evidence previously submitted in the case, or may grant 

reconsideration and direct the taking of additional evidence.” (§ 5906.) 
9

for reconsideration, section 5701 empowers the appeals board to cause testimony to be 

taken and, among other things, to direct the performance of medical examinations.6 

 This power to take additional evidence has long been recognized: 

“The [appeals board] is a court [citation] deliberately clothed 

by the Legislature with administrative facilities to permit it to 

develop the facts in reference to matters not generally known 

to laymen. It was not intended that the litigants before it be 

impaled upon the results of their lack of familiarity with the 

often occult problems of medical science frequently arising in 

compensation cases. As a consequence the [appeals board] 

may not leave undeveloped matters which it acquired, 

specialized knowledge should identify as requiring further 

evidence. In this case the resolution of the issues of injury 

and disability was not patent. Medical evidence thereon was 

therefore required. Under these circumstances the [appeals 

board] had the responsibility of seeing to it that such evidence 

was reasonably complete, whether by use of its own medical 

experts or otherwise.” (West v. Industrial Acci. Com. (1947) 

79 Cal.App.2d 711, 719.) 

 It is not too much to say that the appeals board is more than simply empowered to 

take additional evidence. It is now well established that the appeals board has an 

affirmative duty to develop an adequate record. As an example, where the medical 

evidence was evenly balanced on the issue of industrial causation, our Supreme Court 

held that the appeals board was not free to simply rule that the employee had failed to 

sustain his burden of proof but was required to take additional evidence in order to 

resolve the doubts raised by the existing medical reports. (Lundberg v. Workers’ Comp. 

Appeals Bd. (1968) 69 Cal.2d 436, 440.) 

 

6 “The appeals board may, with or without notice to either party, cause testimony to 

be taken, or inspection of the premises where the injury occurred to be made, or the 

timebooks and payroll of the employer to be examined by any member of the board or a 

workers’ compensation judge appointed by the appeals board. The appeals board may 

also from time to time direct any employee claiming compensation to be examined by a 

regular physician. The testimony so taken and the results of any inspection or 

examination shall be reported to the appeals board for its consideration.” (§ 5701.) 
10

 This principle has enjoyed continuing support. (Kuykendall v. Workers’ Comp. 

Appeals Bd. (2000) 79 Cal.App.4th 396, 404 [“it is well established that the WCJ or the 

Board may not leave undeveloped matters which it acquired specialized knowledge 

should identify as requiring further evidence”]; M/A Com-Phi v. Workers’ Comp. Appeals 

Bd. (1998) 65 Cal.App.4th 1020, 1025; McClune v. Workers’ Comp. Appeals Bd. (1998) 

62 Cal.App.4th 1117, 1120.) In fact, it has been held that a full development of the 

record to enable a “complete adjudication [on the merits]” is an employee’s due process 

right. (Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394.) 

 The medical reporting in this case had a serious flaw which the appeals board 

should have recognized and, had the responsibility, to cure. Dr. Nogales’s report could 

not sustain a finding of industrial causation because her evaluation, as acknowledged in 

her report, was not yet complete. Instead of focusing on the lack of medical evidence on 

the issue of causation, the appeals board noted that the defendant had not offered any 

evidence rebutting or impeaching the medical reporting, i.e., Dr. Nogales’s report. ~(RP 

403.)~ While the defendant could have acted more vigorously, it is also true that the 

appeals board “may not leave undeveloped matters which it acquired, specialized 

knowledge should identify as requiring further evidence.” (West v. Industrial Acci. Com. 

supra, 79 Cal.App.2d at p. 719.) 

DISPOSITION

 The decision of the appeals board is annulled and the matter is remanded for 

further proceedings consistent with this opinion. Petitioners to recover their costs. 

 RUBIN, J. 

WE CONCUR: 

 BIGELOW, P. J. GRIMES, J.